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Welcome to the latest installment of And Now a Word From the Panel, a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country.

As the panel heads to a new summer venue of Santa Fe, New Mexico, for its July 26 hearing session, the panel again faces a robust docket of 13 new MDL petitions for its consideration. This continues what is looking like a 2018 trend of new motions flooding the panel's docket. In that spirit, this month's column examines a motion to vacate a conditional transfer order, or CTO, filed in connection with an MDL proceeding involving leaky pipes. This column also addresses an MDL petition to centralize federal cases involving flood insurance claims arising from recent hurricanes.

But before taking a deep dive into those MDLs, let's take a broader look at the results from the panel's May hearing session, held in Chicago.

Following the May 31 hearing session, the panel ruled on nine motions to create MDL proceedings. This brings the total number of new MDL motions considered this year by the panel to 33, a rate not seen for several years. In granting seven motions and denying two motions to create new MDL proceedings, the panel's 2018 "batting average" now sits at a lofty .576 (19 for 33).

Six of this year's new MDLs involve product liability/sales practices (as categorized by the panel). Perhaps even more significantly, those six new product liability/sales practices MDLs already embody 1,055 individual actions.1 Moreover, and consistent with the flood (if not avalanche) of cases in MDL proceedings, there are now 25 MDL proceedings with more than 1,000 individual pending actions.2

Notwithstanding the jump in the number of new MDLs, the overall number of pending MDL proceedings has declined slightly to 217,3 as compared to 221 just two months ago. The panel continues to close out older MDL dockets, terminating a total of 26 existing MDLs this year through mid-July.4

At its May hearing session, the panel considered (on the papers) and denied a motion to vacate a CTO filed by an insurance company with respect to a declaratory judgment action.5 In 2014, the panel created the MDL proceeding arising from "alleged defects in ... water supply lines, which are used to connect a wall water supply to a household device."6 In denying this motion and transferring the declaratory judgment action, the panel reiterated that actions transferred to an existing MDL proceeding need not assert the identical causes of action or even theories of relief.

Nor does the manufacturer of the allegedly defective product need to even be a defendant. The manufacturer's own declaratory judgment against its insurer was transferred by the panel to the product liability MDL because the "action involves damages arising from allegedly defective ... water connectors and the parties do not dispute that it falls within the MDL's ambit."7 Moreover, the panel observed that there were already six other declaratory actions filed by the manufacturer pending in the MDL proceeding. In addition, as this column has previously observed, arguments that an MDL will be "inconvenient" to particular parties simply do not hold water with the panel.8

Looking Back Again: A Hurricane MDL?

At its May hearing session, the panel considered and denied an MDL motion also involving insurance (and water).9 The MDL petition arose from a series of actions against insurers, alleging that the insurers breached the terms of insurance policies in settling property damage claims arising from one of several hurricanes over the past few years. Finding that these facts reflected "only a superficial factual commonality," the panel denied the motion.10

The panel observed that "[e]ach case necessarily involves a different property, different insureds, different witnesses, different proofs of loss, and different damages" and that "[t]he very nature of the cases ensures that unique issues concerning each plaintiff's loss, claim, investigation, and claim handling will predominate, and will overwhelm any efficiencies that centralization might achieve."11

It is worth noting, however, that whether certain issues "predominate" resembles a factor for the certification of class actions. In other contexts (most notably product liability MDL petitions), the panel has rejected the argument that actions which present individual fact issues must allege identical injuries to create an MDL. Another factor used by the panel in rejecting this hurricane MDL petition was perhaps the more traditional reasoning of "[t]he widely varying procedural posture of the cases."12

What will the panel's trip to Santa Fe bring? Will we continue to see an increasing trend in the grant of MDL motions? Will the panel continue to close out MDL proceedings? Stay tuned for the September edition of And Now a Word From the Panel, as the panel heads to San Francisco, California, for its Sept. 27 hearing session.

  1. MDL Statistics Report - Distribution of Pending MDL Dockets by Actions Pending (July 16, 2018).

  2. Id.

  3. Id.

  4. MDL Statistics Report - Docket Summary Listing (JUly 16, 2018.

  5. In re Fluidmaster Inc. Water Connector Components Prods. Liab. Litig. (MDL No. 2575).

  6. In re Fluidmaster Inc. Water Connector Components Prods. Liab. Litig., MDL No. 2757, at 1 (J.P.M.L. Dec. 11, 2014).

  7. In re Fluidmaster Inc. Water Connector Components Prods. Liab. Litig., MDL No. 2757, at 1 (J.P.M.L. June 6, 2018).

  8. Id. at 1-2; see also "And Now A Word From The Panel: An Inconvenient MDL," Law360 (Mar. 27, 2018).

  9. In re Florida, Puerto Rico, and U.S. Virgin Islands 2016 and 2017 Hurricane Seasons Flood Claims Litig. (MDL No. 2844).

  10. In re Florida, Puerto Rico, and U.S. Virgin Islands 2016 and 2017 Hurricane Seasons Flood Claims Litig., MDL No. 2844, at 1 (J.P.M.L June 6, 2018).

  11. Id. at 1-2.

  12. Id. at 2.

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